Supreme Court Set To Wade Into A Case That Could Tip The Scales For The Midterms

Control of Congress — and the fate of President Donald Trump’s second-term agenda — could come down to a single, urgent decision that landed this week at the Supreme Court’s doorstep.

A lower court ruling striking down Texas’ new congressional map abruptly thrust the justices into a battle they appeared to be trying to avoid: effectively deciding whether to give the midterm boost to Republicans or Democrats. And the decision goes beyond control of the speaker’s gavel. If Democrats retake the House, Trump will spend his final two years in office under a hail of subpoenas and with little leverage to pursue his policy imperatives.

Compounding the stakes for the justices’ ruling is a fast-approaching filing deadline. Texas candidates must declare their bids for Congress by Dec. 8, and already several who were eyeing the newly drawn map have started campaigning.

While the justices have been wrangling with thorny election-related legal issues for years — including another major redistricting case the court delayed in October — many analysts suspected the court would steer clear of cases seen as tilting the landscape in one party’s favor in next fall’s elections.

That “lay low” option seemed to evaporate Tuesday when a divided panel of federal judges in Texas ruled that the map the state’s GOP-controlled legislature adopted in August at Trump’s urging was likely racially gerrymandered and thus unconstitutional. The panel ruled that the map, which made five districts in the state more favorable to Republicans, cannot be used next year and reverted to congressional boundaries drawn in 2021. Republican Texas Gov. Greg Abbott raced to the Supreme Court hours after the ruling.

Of course, a high court ruling restoring the new Texas map is not guaranteed to be decisive for the GOP next November. Presidents typically see their party lose ground in the midterms after their election, and Democrats dominated in off-year elections earlier this month. Democrats could manage to take the House by performing strongly outside Texas or by snatching some of the handful of seats the GOP is trying to shore up in the state. In the 2018 midterms during Trump’s first term, for example, Democrats won more than two dozen House seats to reclaim control of the chamber.

Trump may bear ultimate responsibility for pulling the justices into the fight. Once Trump urged red states to pursue mid-decade redistricting — with just weeks to spare before filing deadlines across the country — the move was certain to reach the high court. Unlike other cases that work their way through circuit courts, appeals in redistricting cases immediately shoot up to the Supreme Court.

“I think it was inevitable when Trump started the redistricting,” University of California at Los Angeles law professor Rick Hasen said. “The structure is that it's very hard for the Supreme Court to stay out.”

In addition to the litigation in Texas, challenges are also pending to GOP-led redistricting in Missouri and North Carolina and to Democratic-led redistricting in California. Any or all of those could quickly reach the high court.

“There's just so many of these cases that could come up for this kind of redistricting that the court's going to have to give some indication because of this unusual churn,” Hasen said. “They’re all coming, like an army of zombies.”

The justices will “have to get involved in some way,” said Capital University law professor Brad Smith, a Federal Election Commission chair under President George W. Bush. “The minimalist way would be to let this decision stand, let it go through channels, but even that — who knows how long that will take — will get them a lot of opprobrium.”

A message for the justices

The judges who struck down the Texas map appeared to be bracing for the high court to review their work. The 160-page majority opinion written by Trump appointee Jeffrey Brown opened with a famous quote from Chief Justice John Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Brown said Roberts’ precept required the invalidation of Texas’ new maps because they were prompted by a Trump Justice Department letter that urged the state to redraw four districts with race in mind. Brown pointed to what DOJ officials said were racial criteria previously used to allow a coalition of distinct minority groups to have a strong chance to elect a candidate of their choice.

Texas’ emergency appeal is sure to challenge that conclusion. Indeed, Abbott already declared Tuesday that the redistricting effort had nothing to do with race. But another consideration could be even more consequential for the justices: whether they conclude that the lower court’s action contravenes a longstanding principle that federal courts shouldn’t disturb election rules as the process gets underway.

A test for the Purcell Principle

Brown’s ruling contains a long section addressing the so-called “Purcell Principle,” a reference to the high court’s holding in a 2006 emergency-docket dispute that courts should butt out of voting-related cases as an election nears. Brown spends a substantial portion of his opinion suggesting the Supreme Court has given inconsistent guidance about precisely when it’s too late for courts to issue election-altering decisions.

In one case last year, Brown said, the justices made a “naked citation to Purcell without any accompanying reasoning or analysis.” And in a 2022 case blocking a redistricting order, he noted, “the Supreme Court did not cite to a single case to support its stay — not even to Purcell.”

“The Supreme Court has stayed a lower federal court’s election-related injunctions at least six times in the last 11 years. This Court is not naïve to that reality,” Brown wrote. “But this Court is also not naïve to the likely unconstitutional realities of the 2025 Map.”

One question the justices may have to confront is whether Texas’s unusual midterm redistricting and the rapid process the state undertook to change the district boundaries is entitled to the same deference courts have shown to more routine redistricting or to map-drawing efforts initiated because a court threw out an earlier map.

“It’s kind of an emergency of the state’s own making,” Hasen said of this year’s redistricting move in Texas. He also said it highlights how the Purcell Principle can encourage states to rejigger their rules on the eve of an election, then claim it’s too late to revisit them.

“What if a state passes a really suppressive law right before the election? Whites only can vote,” Hasen said. “The court is really going to say, ‘Sorry, it's too close to the election?’ … I don't think so.”

Another major redistricting fight awaits a ruling

In another potential complication for the justices, the court is currently preparing a ruling in major voting rights cases they’ve been wrestling with since last term involving Louisiana’s congressional maps. The cases were initially argued last March, but the justices announced in June that they would schedule it for re-argument in the fall.

That delay made it less likely that the court’s ruling would impact the congressional map in Louisiana or any other state for 2026. It also took place over the public objection of Justice Clarence Thomas, who suggested his colleagues were stalling.

“Congress requires this Court to exercise jurisdiction over constitutional challenges to congressional redistricting, and we accordingly have an obligation to resolve such challenges promptly,” the George H.W. Bush appointee wrote. “I thus see no reason to avoid deciding these cases now.”

Over the summer, the justices broadened the legal issues in the Louisiana cases, giving them the potential to undermine the legality of districts that states create to meet the requirements of the Voting Rights Act. At the re-argument session last month, the justices seemed dubious about aspects of Louisiana’s process, but it was unclear how far the high court might go in cutting back the impact of the Voting Rights Act.

It’s not known when the justices will rule in the Louisiana cases, but they appeared splintered at the October arguments, making it seem unlikely they will issue a decision in time to affect the congressional election season about to get underway.